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[2010] ZAGPPHC 228
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National Fund for the Municipal Workers v Makado Municipality (54830/2007) [2010] ZAGPPHC 228 (9 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 54830/2007
DATE:
09/12/2010
In
the matter between:
NATIONAL
FUND FOR THE MUNICIPAL WORKERS
..............................
APPLICANT
and
MAKADO
MUNICIPALITY
................................................................................
RESPONDENT
JUDGMENT
1.
At
the hearing of this Application on the points in
limine
raised
by the Respondent, counsel for the Applicant handed up an amended
Notice of Motion. Mr. Cassim SC, for the Respondent, did
not object
to the amended Notice.
2.
In
terms of the amended Notice of Motion, the following relief is prayed
for:
"1.
That a declaratory order be issued that all the Respondent's
employees who became members of the Applicant before December
2006,
as listed in annexure "SA2" to the Applicant's
supplementary affidavit are still members of the Applicant;
2.
That the Respondent be ordered to adhere to and comply with the
provisions of
Section 13A
of the
Pension Fund's Act, 24 of 1956
, in
respect of the said members of the Applicant, including payment of:
2.1
AH
arrears contributions to the Applicant as calculated in annexure
"SA3" to the Applicant's supplementary affidavit:
2.2
All
further contributions payable to the Applicant in respect of the said
members of the Applicant since the calculation referred
to in 2.1
above;
3.
That
the Respondent be ordered to pay the Applicant's costs;
4.
Further
and/or alternative relief."
3.
On the Answering Affidavits, as they stand, the Respondent raised
certain points in
limine.
These
points appear at p146 and following of the paginated papers. The
relevant pg is pg 4.1 which I quote:
"4.
Objections
In Limine
:
4.1
At the hearing of the application it will be argued as follows on
behalf of the Respondent:
4.1.1
that the relief sought by the Applicant as set out in the Notice of
Motion pertains to the interpretation and application
of the
collective agreements as contemplated in
Section 24
of the
Labour
Relations Act 66 of 1995
, as amended ("the new LRA"). It is
accordingly submitted that the above Honourable Court does not have
jurisdiction to
adjudicate such a dispute but such a dispute is
arbitrable by the Commission for Conciliation Mediation and
Arbitration ("the
CCMA") or by the Bargaining Council
having jurisdiction in terms of
Section 124(2)
and (5) of the new
LRA.
4.1.2
that
in terms of paragraphs 2 to 5 the Applicant is seeking for an order
of the above Honourable Court directing the Respondent
to reinstate
certain of its employees who are members of a rival provident fund
and have withdrawn as members of the Applicant
or have exercised
their right to dissociate themselves from the Applicant, and to
deduct pension fund contributions from the aforesaid
employees'
remuneration and pay same over to the Applicant. None of the effected
employees have been joined as Respondents in the
application. It is
submitted that the non-joinder of the Respondent's employees who are
being affected by the relief sought by
the Applicant makes the
application fatally defective and, accordingly the Applicant's
application falls to be dismissed with costs
on this ground alone.
4.1.3
that
an order compelling the Respondent's employees who are members of the
South African Municipal Workers Union ("SAMWU")
which is a
majority union in the Respondent to belong to a pension fund of a
rival minority union is not only in breach of the
employees'
constitutional right to freedom of association but is also in breach
of the principle of majoritarianism as provided
in
Section 25
of the
new LRA.
4.1.4
that
an order directing the Respondent to deduct pension fund
contributions (including all arrears and interests) and pay same over
to the Applicant without the consent of the affected employees, it is
submitted, is in breach of Section 34 of the Basic Conditions
of
Employment Act 75 of 1995 ("the
BCEA").
4.1.5
that
the collective agreements on which the Applicant relies in support of
its claim against the Respondent has elapsed and has
no binding
effect on SAMWU and its members.
4.1.6
that
there is already a binding arbitration award which was issued against
the Respondent in respect of issues which constitute
the basis of the
Applicant's application in these proceedings. The Applicant whilst
being aware of the aforesaid arbitration award
has not taken any
steps to have it reviewed and set aside."
Mr.
Cassim imformed me that pg 4.1.2 would not be persisted in.
Apparently, the parties came to an arrangement and, for purposes
of
this Judgment, I need not concern myself any further with this
particular point in
limine.
4.
The
remaining points in
limine
can
be categorised into two classes -
4.1
An
arbitration award was handed down on 14 December 2006 in the matter
between SAMWU obo Tshirondoni & Others, as Applicant
and Makado
Municipality as Respondent. It is submitted by Respondent that the
arbitration dealt with the same facts as in the application
before
me, that the Respondent is bound by the arbitration award and that
the matter is
res
judicata]
4.2
The
dispute revolves around a matter of labour and this Court has no
jurisdiction to hear the matter.
5.
The
Arbitration Award
:
5.1
It is common cause that the Applicant was not a party to the
arbitration.
5.2
To succeed on
res
judicata,
it
must be shown that the arbitration award given is in respect of the
same parties now cited in the application before me. This
is clearly
not the case. This point must therefore fail.
6.
Jurisdiction
:
6.1
A
reading of the founding papers leaves room for an argument that
Applicant's case is founded on the 1997 collective agreement referred
to in the papers.
6.2
Mr.
Cassim argued that Applicant's case is indeed so founded. Assuming
that this is so, then Section 157, read with
Section 24
, of the
Labour Relations Act, 66 of 1995
, would have ousted the jurisdiction
of this Court.
6.3
Mr.
Louw SC, on behalf of Applicant, submitted that the Applicant did not
rely on the 1997 collective agreement. He continued to
submit that
the 1997 collective agreement has terminated and that the employees,
referred to in the amended Notice of Motion, voluntarily
became
members of the Applicant and, consequently, are bound by the rules of
the Applicant. The question which this Court has to
decide on the
merits therefore rests on an interpretation of the rules and an
interpretation of the provisions of the
Pension Fund's Act 24 of
1956
. What is involved in this application is not a dispute between
an employer and an employee. The dispute revolves around an alleged
membership and of the Applicant, an interpretation of the rules and
an interpretation of the
Pension Fund's Act. It
cannot be held and I
do not hold that this Court does not have jurisdiction to hear the
application. The jurisdictional point in
limine
must
therefore fail.
I
make the following order:
1.
The
points in
limine
are
dismissed.
2.
Costs
in respect of the points in
limine,
including
the costs of appearance on 29 November 2010, are costs in the
application.
J
VAN DEVENTER
ACTING
JUDGE OF THE HIGH Court
DATED
AT PRETORIA ON THIS 9
th
Day of December
2010.